United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR MICHAEL PAGET (of Counsel) John Waltham & Co Solicitors Edith Steven House 77-78 Bridge Street Swindon SN1 1BT
For the Respondent	MR PAUL ARCHER (Solicitor) Lemon & Co Solicitors 34 Regent Circus Swindon SN1 1PY


 


HIS HONOUR JUDGE J MCMULLEN QC

1. On 11 March 2002 I sat with Ms Corby and Mr Manners on a Preliminary Hearing of this appeal. The facts and reasons, which are set out in the judgment I gave on behalf of the Employment Appeal Tribunal in paragraphs 2 to 7, should be read as part of the judgment of the Employment Appeal Tribunal today. The essential issue was to determine the relationship between the Applicant and the Respondent. The directions that we gave in March have been complied with and we are grateful to the Chairman for producing his notes for us, together with the witness statements which had been exchanged in advance between the parties. We have now a much clearer picture of what the issues were before the Employment Tribunal.
2. The Tribunal started its examination by reference to the Originating Application. The Applicant had claimed that he was engaged on a contract of employment as a Club Manager/Caretaker. The Employment Tribunal made firm findings of fact against the Applicant on that proposition based on the assessment of the credibility of the evidence. Very realistically today, Mr Paget has departed from his Skeleton Argument and does not seek to challenge that finding. However, what he does is to take up the trail that we laid in our earlier judgment. The evidence for that is recorded by the Chairman as follows:

"My wife worked behind the bar. I did that if the staff did not turn up.

I was paid separately for bar work throughout.

My earnings were between £20 and £40 and £250 a week according to the hours.

This would be deducted from the £450, depending on the hours worked.

I was paid if I worked in the evenings, which was usual."

In his witness statements the Applicant asserts that he was never paid anything. On that material, the Tribunal formed the view that there was no relationship which would found a claim under the Employment Rights Act or the Disability Discrimination Act. It is necessary therefore to look at the provisions of those separate statutes.

3. First, for the purposes of the Applicant's claims of unfair dismissal and unlawful deductions from pay, Section 230 of the Employment Rights Act 1996 provides as follows:

"(1) In this Act "employee" means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.

(2) In this Act "contract of employment" means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.

(3) In this Act "worker" … means an individual who has entered into or works under (or, where the employment has ceased, worked under) –

(a) a contract of employment, or

(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract …"

The requirements of the Acts are different according to the rights enforced. For the purposes of unfair dismissal the Applicant must be an employee. For the purposes of the claim under the unlawful deductions provisions the Applicant may be an employee or a worker. For the purposes of the Disability Discrimination Act a more liberal interpretation of employment is provided for. Section 68(1) says this:

"…"employment" means, subject to any prescribed provision, employment under a contract of service or of apprenticeship or a contract personally to do any work, and related expressions are to be construed accordingly …"

Thus, the Disability Discrimination Act follows the Employment Rights Act definition of 'worker'.

4. The essential argument is that the Applicant had put material before the Employment Tribunal which, albeit not directed specifically at the bar work issue, nevertheless was in play before the Employment Tribunal, leading to the finding which we have cited above. Having looked at the Chairman's notes we are satisfied that, although not a pleaded case, at least evidence was adduced sufficient to base that finding. The question is, does that finding lead to a conclusion that the Applicant was entitled to build a claim upon either of the two statutes?
5. The argument on behalf of the club, by Mr Archer, is based upon a technical approach to the pleadings. We do not say that critically: it is a good point, and it is made by reference to authority, for in Mensah v East Hertfordshire NHS Trust [1998] IRLR 531, some helpful guidance is given. In that case, the Applicant alleged racial discrimination in respect of vacancies advertised. The Employment Tribunal found that in her Originating Application the Applicant had made it clear that her complaint related to vacancies in two units. In its Notice of Appearance the Respondent referred to vacancies only in one unit. A letter sent to both parties by the Tribunal, following a directions hearing, made no mention of the second unit. At the hearing the Tribunal found that the case was considered solely on the basis of discrimination alleged to have taken place in the one unit. When she appealed to the Employment Appeal Tribunal, the Applicant contended that the Tribunal had erred in law in failing to ensure that all matters contained in the Originating Application were dealt with expressly, or were expressly abandoned. The Employment Appeal Tribunal found in her favour, supporting its judgment by reference to the 1993 Rules of Procedure which enjoined the Tribunal to consider the terms of an Originating Application and written representations where an Applicant failed to attend. On appeal by the NHS Trust the Court of Appeal decided that the Employment Tribunal had not erred in failing to consider allegations of racial discrimination in respect of vacancies in the second unit which the Applicant had fairly raised in her Originating Application but which she had taken no further steps to pursue before the Tribunal.
6. The judgment of Peter Gibson LJ, at paragraph 17, says this:

"Industrial tribunal proceedings are characterised by their informality … Many litigants in the industrial tribunal appear in person or with lay representatives and despite the wide discretion given to the tribunal … it is conceivable that the courts might have recognised a duty such as that implicitly found by the Employment Appeal Tribunal. However a long and consistent line of cases give no encouragement whatever to the existence of such a duty and consistently with the procedural rules, which apply in the same way to unfair dismissal or redundancy cases and to discrimination cases, there has been no difference of approach between the two types of cases."

The duty which he was referring to is a duty to examine and find upon every allegation in the Originating Application. In a supporting judgment, Sir Christopher Slade said, at paragraph 36:

"I too would strongly encourage industrial tribunals to be as helpful as possible to litigants in formulating and presenting their cases, particularly if appearing in person. There must, however, be a limit to the indulgence which even litigants in person can reasonably expect. The desirability in principle of giving such assistance must always be balanced against the need to avoid injustice or hardship to the other party on the particular facts of each case. This, in my judgment, is a very good reason for holding that the manner and extent of such assistance should generally be treated as a matter for the judgment of the tribunal and not as subject to rigid rules of law. In the present case, the trust was in my judgement reasonably entitled to expect that the tribunal would in its decision be dealing with only those issues which had been covered by the directions … and Mrs Mensah's oral submission and evidence."

7. Mr Archer points out that in our case the Applicant not only appeared but also was represented by a solicitor and that it is possible for a discrete approach to be taken to differing contracts. It seems to us, however, that the last words of Sir Christopher Slade's judgment are relevant here. Mensah is not directly applicable because here we have evidence put before a Tribunal which was not pleaded. Nevertheless, applying Sir Christopher Slade's judgment, the Tribunal did have in front of it an issue on the evidence and, as we have cited, was able to come to a finding about the degree of bar work undertaken by the Applicant. So it did discharge its duty to consider the material which had been put in front of it.
8. We can well understand Mr Archer's dismay, on behalf of his client, that a different case appeared to be developed in addition to the one which everybody was expecting to be dealt with on the day, but the Tribunal did not exclude the evidence as being irrelevant or unfair, and having accepted it, cannot be faulted for coming to a conclusion upon it in the particular circumstances of the case.
9. In our judgment, what that finding points to, and points only to, is the existence of a relationship categorised as a worker for the purposes of Section 230(3) of the 1996 Act and Section 68 of the 1995 Act. The essential components are that the Applicant did work, for which he was paid, it was fairly regular and can be quantified, as the Tribunal has. He usually worked in the evening, and although there is insufficient mutuality of obligation to found a contract of employment, in our judgment, the simple facts found by the Tribunal indicate the status of worker. On that basis the Applicant is covered for two out of the three claims he makes.
10. This case will be remitted to the same Employment Tribunal where the live issue will be about the deduction of part of the payments for the bar work. There will also be an issue relating to the jurisdiction of the Tribunal to hear the case under the Disability Discrimination Act, since the Chairman has recorded evidence, which appeared to be unchallenged, that the Respondent employed four people and therefore the claim would be excluded since a Respondent, presently, may be sued under the Disability Discrimination Act only if it employs fifteen or more persons.
11. That statutory exemption will be repealed in 2004. There are challenges to the present exemption based upon, as we understand it, Article 14 of the European Convention on Human Rights. We were invited to stay the further proceedings under the Disability Discrimination Act in this case pending the outcome of that issue, which initially appeared to us to be a sensible approach, but since there is now a live issue under the deduction of wages jurisdiction, we prefer to allow the Bristol Tribunal to decide what to do about the disability claim.
12. Both advocates have pointed out what the Tribunal found about the resources of the Respondent. Nothing has changed since the Tribunal hearing when there was an accumulated deficit of £100,000, an annual loss in the order of £10,000, it had not made any profit over the last seven years and the club was in dire financial straights. The Club in an unincorporated association of present and former working men and, as we have been told today, is suffering the fate of many long established working men's clubs - a sharp drop in business.
13. If the Applicant succeeds in getting through the various stages of the Disability Discrimination Act and achieves a result in his favour which involves an award of compensation, he will have to consider very carefully whether he will indeed receive money from the Club, given its financial circumstances. Those are matters of judgment which the Applicant will have to reflect on, including weighing up the costs already incurred and to be incurred in proceeding. Those reflections we give are at the express invitation of Mr Paget since Mr Rothwell is in our Tribunal today and able to hear these exchanges.